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Is There a Spousal Privilege in South Carolina?

No one likes a snitch. Especially when they're snitching on their own husband or wife...

Even the courts - which heavily depend on people snitching on each other - are careful not to force anyone to testify against their spouse. It's called spousal privilege.

In South Carolina, spousal privilege is protected by law, which says that a husband or wife cannot be compelled to disclose any confidences or communication made during their marriage.

Why Are Spouses' Communications Privileged in SC?

The purpose of the marital privilege is to encourage open communication in a marriage and protect the relationship from the state by allowing someone to refuse to testify against their spouse.

Most married couples trust each other and share their most private thoughts and secrets. If the state could force either party to divulge these communications, this would put a strain on the marital bond.

So, you can choose to refuse to testify - but that does not mean that you can be prevented from testifying.

You can't use the privilege to keep your spouse silent - the privilege belongs to the person testifying. So, your spouse can choose not to testify against you. Or they can choose to testify. If your spouse chooses not to invoke the privilege and testifies against you, you may not be able to stop them.

What Is Protected by Spousal Privilege in SC?

Almost all communications between spouses are protected in criminal cases.

For example, if your spouse is arrested for selling illegal drugs, you cannot be forced to testify about what they said to you. If they are suspected of embezzling or even murder, and you are not suspected of being involved, you can choose to not testify against them.

What Is Not Protected by Spousal Privilege in SC?

But, there are some exceptions - the spousal privilege does not apply in some circumstances, including:

  • Allegations of child abuse or neglect;
  • The death of a child;
  • Criminal sexual conduct involving a child; or
  • One spouse is accused of physically assaulting the other.

The SC Supreme Court has ruled that spousal privilege doesn't cover domestic violence in SC because the testimony would be about observations of a physical act, not a verbal communication.

This means that you would be legally required to testify against your spouse if they were being tried for committing violence against you. If you refused, you could be held in contempt of court and even jailed.

The right to use spousal privilege could also be challenged if the communication in question was not private. If the court wants to know about something your spouse said to you in front of friends or in a public place like a crowded restaurant, you may be forced to testify.

Got Axelrod?

Like any privilege, the spousal privilege must be properly asserted. If it is not, it could be waived, and the testimony could be forced. If you are being asked to give testimony against your spouse, you should contact your attorney immediately to find out whether your testimony can be compelled or if spousal privilege applies.

If you are facing separation, divorce, or a custody dispute in SC, your Myrtle Beach divorce lawyer on the Axelrod team can help. Call us today at (843) 916-9300 or fill out our contact form to set up a consultation.

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